BUCKLEY: Obama shatters the limits on presidential powers

Obama has taken imperious overreach to new extremes

By F.H. Buckley - -
Wednesday, April 16, 2014

Anyone watching the House Oversight and Government Reform Committee’s hearings last week might be forgiven if, blinking their eyes, they imagined the participants in 17th century garb, for the scene was right out of British battles between Charles I and Parliament.

Appearing for the Crown, imperious, and contemptuous of the Lower House, was the king’s minister, Eric H. Holder. Questioning him was the parliament-man, Louie Gohmert, Texas Republican, who Mr. Holder curtly warned: “Don’t go there, buddy.”

That brief exchange illustrated, for all to see, the transformation of American politics and the rise of “crown government.” Recent American presidents, and Barack Obama in particular, have escaped many of the constraints of the separation of powers.

Mr. Obama makes and unmakes laws without the consent of Congress, spends trillions of government dollars, and makes the greatest of decisions, whether to commit his country to war by himself often without even bothering to consult Congress. His ability to reward friends and punish enemies exceeds anything seen in the past. He is rex quondam, rex futurus — the once and future king.

This is not what the Framers envisioned when they wrote and gave us our Constitution in 1787. They had seen one king in George III and didn’t want another.

They didn’t foresee how things would turn out, however. They didn’t predict the rise of democracy, political parties, the regulatory state, national presidential candidates and a modern media that makes rock stars out of presidents. If that’s not what the Framers expected, that’s only to say that they weren’t omniscient.

They thought that senators would be appointed by state legislatures, which would probably also pick the presidential electors. They thought that presidential elections would almost always be decided by the House of Representatives, voting by state. They thought we’d have something much closer to what today is parliamentary government.

In particular, they didn’t foresee how the doctrine of separation of powers would be turned on its head and employed to immunize a president from oversight and attack. They thought it would do just the opposite. Instead, it permits a president to run out the clock when impeached, to go to war to distract attention from domestic scandals and to refuse to enforce laws he dislikes.

Thus, when Congress refused to loosen immigration laws by passing the Dream Act, Mr. Obama was able to execute an end run around Congress by simply declining to enforce the old law and adopting a new set of rules by presidential fiat.

The gridlock that is sometimes a consequence of the separation of powers was meant to check a president, but now empowers him. When Congress cannot act, the president can today pull out a pen and rule by diktat. As Clinton adviser Paul Begala put it, “Stroke of the pen. Law of the land. Kind of cool.”

As for the spending power, there are few things more central to our idea of government than the prohibition against dishing out public moneys without a congressional appropriation. Yet, in the Troubled Asset Relief Program bailout, $80 billion went to car manufacturers (and their unions), in spite of the fact that the appropriation was only permitted for “financial institutions.” Do you recall the constitutional crisis about that? Funny, neither do I.

Mr. Obama has pushed the limits of presidential power further than any of his predecessors, and for this, many on the right have trenchantly criticized him. All he has really done, however, is to work out the unhappy logic of presidential government as it’s evolved over the course of the past century.

Power has become centralized in both presidential and parliamentary regimes, but there is a special reason why the threat to political freedom is greater in presidential governments. In place of the parliamentary nonconfidence motion, in which a government might fall through a simple majority vote in the House of Commons, we have the impenetrable barrier of a two-thirds vote to convict an impeached president in the Senate. In place of the government’s duty to attend Parliament and submit to questions, we have the president’s ability to hide behind a teleprompter at a semi-regal State of the Union address.

Then there’s the president’s role as head of state as well as head of government. We don’t split up the roles as Britain does, between a ceremonial but powerless monarch and a powerful prime minister. The British might love the queen, but she cannot send the tax collector or the attorney general after them. They can treat their prime ministers as figures of fun, while Americans are asked to respect their president as the symbol of their country.

A notable feat is rewarded with a presidential medal, and a tragedy requires a healing presidential speech. Even the pathological hatred of presidents — the “Bush derangement syndrome” of 10 years ago — is a symptom of an unhealthy fixation on the president.

All this helps explain why, as an empirical matter, there is less political freedom in presidential than in parliamentary countries. A road back, in America, requires a political party committed to constitutional government and the indispensable role of Congress. Were that to be the Republican Party, it would have to be one that distinguishes itself from “presidentialists” of either the left or right who seem to believe that “their” presidents should have powers never envisioned by our Founders.

F.H. Buckley is a foundation professor at George Mason School of Law and the author of “The Once and Future King.” (Encounter Books, April 2014).